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Kate Dowdalls QC in UKSC case of AR v RN

May 27, 2015

Supreme Court decision on habitual residence of children under the Hague Convention on the Civil Aspects of International Child Abduction

Kate Dowdalls QC, head of the Arnot Manderson Family Law Group, recently appeared for the father before a five judge bench in the UK Supreme Court case of AR v RN, an appeal from the Inner House concerning the habitual residence of children under the Hague Convention on the Civil Aspects of International Child Abduction.

The Supreme Court has this week issued its decision stating that Under Article 3 of the Convention it is unlawful to remove or retain a child in breach of rights of custody attributed to a person under the law of the state in which the child was “habitually resident” immediately before removal or retention. The Inner House had overturned the decision of the Lord Ordinary and held that the children in the case were habitually resident in Scotland immediately prior to the retention.

The Court held that, for the purposes of habitual residence, the stability of residence, rather than its degree of permanence, is important. There is no requirement that the child should have been resident in the country in question for a particular period of time or that one or both parents intend to reside there permanently or indefinitely. In determining habitual residence, the focus is upon the situation of the child, with the intentions of the parents being merely one of the relevant factors. It is necessary to assess the degree of the integration of the child (or, in the case of an infant or young child, the degree of integration of those on whom the child is dependent) into a social and family environment in the country in question. There is no rule that one parent cannot unilaterally change the habitual residence of a child.